Fiduciary Obligations

40th Anniversary Republication with Additional Essays

This volume brings together three separate works written by Paul Finn over nearly 40 years. The first, Fiduciary Obligations, was published in 1977. It has been out of print for many years, though it is still widely cited both in judicial decisions in common law countries and in international scholarship on fiduciary law. It has been regarded widely as a ‘seminal’ or ‘classic’ piece. Its publication preceded two important developments. The first was the High Court of Australia’s systematic reappraisal of equity jurisprudence in the 1980s. This contributed significantly to the shaping and future direction of modern fiduciary law in Australia. The second was the growth in civil litigation in common law countries against banks, advisers in many guises, commercial ‘agents’, franchisees, joint venturers and other commercial actors which raised issues as to the extent to which, if at all, functions they performed for customers, etc, could attract strict fiduciary standards of conduct or merely those lesser standards otherwise imposed by the common law or equity.

These two developments inform the second work in the volume, "The Fiduciary Principle", which was published in Canada in 1989, but is relatively unknown in Australia. Though its scope was limited designedly to those standards of conduct the fiduciary principle imposed on private law fiduciaries, it indicated when, and to what extent, a person or body would be a ‘fiduciary’ for the purposes of those standards. It accepted that, while ‘fiduciary’ could not be defined, it could be described. That description, founded on a ‘legitimate expectation’ test, is commonly used both in Australia and elsewhere.

The third piece, "Fiduciary Reflections" was published in 2014 and contains the author’s personal reflections on the course of Australian fiduciary law since the publication of Fiduciary Obligations. It suggests that, despite the clear signposts for the future development of fiduciary law given by the High Court in the 1980s, recent decisions of subordinate Australian courts seem to be heading, unnecessarily, in the opposite direction. Now at risk are the coherence of fiduciary law and its rationale.

From the Book Launch Fiduciary Obligations and Finn’s Law, address by The Hon Keith Mason AC QC, 9 February 2017...

“Fiduciary Obligations comes with a modern Introductory Comment by Paul himself, a Preface by Sir Anthony Mason, and the reproduction of two of Paul’s many extra-judicial contributions on the topic. These are an article on The Fiduciary Principle that first appeared in 1989 and another, called Fiduciary Reflections, that was published in 2014. The latter tracks developments in Paul’s thinking and scholarship on this topic over the past 40 years as well as its reception into law. ... Together, these two books will enable the discerning academic or practitioner to survey large swathes of law. The eminence of the various contributors allows us to be sure that we are shown where the law has come from, where it is going, and where the law in Australia is converging or diverging from that of overseas. Each book shows what vast strides have been made in the coherent understanding of legal and equitable principles, the magnetic interplay between statutory and judge-made law, and the convergence of public and private law discourse that has taken place in the 46 years since Paul Finn first slipped shyly into postgraduate studies at London University.” Read Launch Speech...

CONTENTS

Foreword by Sir Anthony Mason AC, KBE List of Chapters Preface to Original Edition About this Book An Introductory Comment by Paul Finn Table of Cases Table of Statutes

Fiduciary Obligations (1977)

1. Fiduciaries

Part I: Fiduciary Offices and the Fiduciary’s Duty to Act Honestly in What he Alone Considers to be the Interests of His Beneficiaries

2. The Fiduciary Office 3. The Fiduciary Obligation 4. Appointments to Fiduciary Offices 5. Delegation of Discretions 6. Acting under Dictation 7. Fettering Discretions 8. The Duty to Consider Whether a Discretion Should be Exercised 9. Judicial Review of the Exercise of Discretion 10. The Requirements of the Fiduciary Obligation in Exercising a Discretion 11. The Fiduciary’s Duty Not to Act for his Own Benefit or for the Benefit of any Third Person 12. The Duty to Treat Beneficiaries of the Same Class Equally 13. The Duty to Treat Beneficiaries of Different Classes Fairly 14. The Duty Not to Act Capriciously or Totally Unreasonably

Part II: The Duties of Good Faith

15. The Duties of Good Faith 16. Undue Influence 17. The Misuse of Property Held in a Fiduciary Capacity 18. Misuse of Property Held in a Fiduciary Capacity: The Liabilities 19. The Duty of Confidence 20. Purchases of Property Dealt With in Positions of a Confidential Character 21. Conflict of Duty and Interest 22. Conflict of Duty and Duty 23. Purchasing Debts and Incumbrances: Renewing Leases and Purchasing Reversions 24. Harming an “Employer’s” Business

The Fiduciary Principle (1989)

25. The Fiduciary Principle

Fiduciary Reflections (2014)

26. Fiduciary Reflections

Index

REVIEWS

In the words of Sir Anthony Mason AC KBE, the author “has been the principal architect in our time of the defining or descriptive structure of the fiduciary relationship”. This book is a celebration of the author’s invaluable contribution to fiduciary law. The book is divided into three parts. The first is a republication of the author’s 1977 seminal work, Fiduciary Obligations. As Sir Anthony Mason has stated, it provides “a comprehensive set of principles comprising fiduciary law as it is now understood”. The second part, “The Fiduciary Principle”, is a reproduction of the author’s 1989 work which examines international developments in fiduciary law and considers the interaction of concepts of unconscionability and good faith with fiduciary obligations. The final part, “Fiduciary Reflections”, is a reproduction of an essay that the author wrote in 2014 where he reflects on the development of the fiduciary principle in Australia over the last 40 years. He laments that in Australia we are “no closer to agreeing upon a simple, intelligible and coherent account of the fiduciary principle and its rationale” and concludes that the development of fiduciary law in Australia has regressed. The republication of the author’s works is a timely reminder of their continuing influence in Australian common law and the immense contribution the author has made to Australian jurisprudence.

David Kim, InPrint, Law Institute Journal Victoria, November 2017

This publication on fiduciary obligations has stood the test of time. It has been relied upon by many lawyers and is seen as being the first reference to be reviewed when there is an issue or uncertainty concerning fiduciary obligations. … This book achieves the original purpose that Professor Finn originally set out to achieve - "to fill a gap in the writing in Equity" (as relating to fiduciary obligations). The new chapters highlight the developments in the area of the law since the original publication. I recommend the book to all legal practitioners. It was a privilege to review and receive an early copy of this publication. I expect like the original edition, this book will be much sought after. Read full review...

David Toole, Ethos, ACT Law Society, September 2017

Paul Finn’s Fiduciary Obligations, first published in 1977, marks the whole field of fiduciary law today … Finn’s 1977 book has become a classic text for students, academics and practitioners. ... [The] volumes are recommended reading for students, scholars and practitioners, and should find their way into every law school library. In Cambridge lore, Fiduciary Obligations is constantly stolen from the Squire Law Library. It is expensive on the secondary market. This republication should balance supply and demand, and will continue to stimulate research. The perspectives opened up by the inclusion of Finn’s subsequent essays to the original text should by now be apparent; the republication therefore commends itself. Finn’s Law, an interesting mixture of legal biography and thematic explorations of particular aspects of Finn’s legacy, will be of interest even to those less interested in Finn the man. Many of the contributors to Finn’s Law close their remarks with personal acknowledgment of Finn’s contribution to their own journey in the law. Finn sent me an offprint of “Fiduciary Reflections” in 2014, while I was struggling to convince the Cambridge public lawyers, as he had 40 years previously, that fiduciary principles were relevant to the law of judicial review. His advice to me was: “Keep fighting, the sun will rise”. This echoed the closing words of a study in constitutional law by another great Cambridge equity scholar, F.W. Maitland. The task, to which both contributed in their own way, is of staggering breadth and complexity. Like Moses, Finn may have lead us out of Egypt – but, after 40 years in the desert, we are not yet in Canaan. This republication could provide the basis for a reorientation of fiduciary theory, or a footnote in a conversation dominated by defunct categories and dichotomies that generate more heat than light. We should all engage in some “fiduciary reflections” – or be content to wander in the dark. Read full review...

J.G. Allen, Cambridge Law Journal, 2017

Paul Finn and The Federation Press are to be praised in republishing his leading work, with the additional of two further essays. No lawyer worth his salt with a trust or pension practice should be without a copy of 'Finn'. ... Originally published in 1977, Paul Finn's Fiduciary Obligations has a justified status as a classic text, with myriad citations by the courts both in the UK, Australia, Ireland and elsewhere in the common law world. Unfortunately, Finn's book has been out of print for a number of years and it is almost impossible to get hold of a copy. Your reviewer's standing order search on the second-hand book sites has not revealed a copy for sale over many years! … So why is a law book that is now over 40 years old worth reprinting and purchasing now? Broadly it is because fiduciary law is such a tricky area and because the book is the best and clearest guide through many of the thickets. It is deservedly called a 'classic'... anyone seeking to get to the bottom of the duties and obligations of trustees, directors and indeed other fiduciaries (or indeed try to work out who is a fiduciary) needs to start with Paul Finn's book, and this is the case even though the law has (inevitably) moved on in the last 40 years.

The second book, Finn's Law, is an edited collection of papers which were delivered in 2016 at a conference in Canberra which celebrated the legal career of Paul Finn. This is a highly useful addition to the reprint of the expanded Fiduciary Obligations. It contains eight full chapters, each by a distinguished academic or judicial author. One, by Cranston J, looks at the legal life of Paul Finn (his career as an academic and as a judge) and the other seven look at individual legal topics. Read full reviews...

David Pollard, Trust Law International, Vol. 31, No. 1, 2017

This is a most interesting accumulation of the essential writings on the law of fiduciary obligations. Read full review...